Mentyn v Westpac Banking Corporation - [2004] FCAFC 149

FEDERAL COURT OF AUSTRALIA
Mentyn v Westpac Banking Corporation [2004] FCAFC 149
Banking Act1959
Cheques Act 1986
NAGM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 395 Appr
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Foll
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 Cons
JEAN-PAUL MENTYN V WESTPAC BANKING CORPORATION, TASMANIAN PERPETUAL TRUSTEES LTD, THE SUPREME COURT OF TASMANIA, THE STATE OF TASMANIA, A D PEARCE & CO, JEFFREY JAMES FALCONE and VIVIEN MAY FALCONE, ARCHER BUSHBY, RAE & PARTNERS, SHIELDS HERITAGE, GUNSON WILLIAMS, JACKSON AND TREMAYNE, THE LAW SOCIETY OF TASMANIA
T18 OF 2003, T3 OF 2004, T4 OF 2004
KIEFEL, WEINBERG AND STONE JJ
28 MAY 2004
HOBART

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

T18 OF 2003
T3 OF 2004
T4 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JEAN-PAUL MENTYN
APPELLANT

AND:

WESTPAC BANKING CORPORATION
FIRST RESPONDENT

TASMANIAN PERPETUAL TRUSTEES LTD
SECOND RESPONDENT

THE SUPREME COURT OF TASMANIA
THIRD RESPONDENT

THE STATE OF TASMANIA
FOURTH RESPONDENT

A D PEARCE & CO
FIFTH RESPONDENT

JEFFREY JAMES FALCONE and VIVIEN MAY FALCONE
SIXTH RESPONDENT

ARCHER BUSHBY
SEVENTH RESPONDENT

RAE & PARTNERS
EIGHTH RESPONDENT

SHIELDS HERITAGE
NINTH RESPONDENT

GUNSON WILLIAMS
TENTH RESPONDENT

JACKSON AND TREMAYNE
ELEVENTH RESPONDENT

THE LAW SOCIETY OF TASMANIA
TWELFTH RESPONDENT

JUDGES:

KIEFEL, WEINBERG AND STONE JJ

DATE OF ORDER:

28 MAY 2004

WHERE MADE:

HOBART

THE COURT ORDERS THAT:
1.        The application for leave to appeal is dismissed.
2.        The application of 17 March 2004 is dismissed.
3.        The application for adjournment and other orders filed on 26 May 2004 is dismissed.
4.The appellant is to pay each of the respondents’ costs of the appeal and the applications.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

T18 OF 2003
T3 OF 2004
T4 OF 2004

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JEAN-PAUL MENTYN
APPELLANT

AND:

WESTPAC BANKING CORPORATION
FIRST RESPONDENT

TASMANIAN PERPETUAL TRUSTEES LTD
SECOND RESPONDENT

THE SUPREME COURT OF TASMANIA
THIRD RESPONDENT

THE STATE OF TASMANIA
FOURTH RESPONDENT

A D PEARCE & CO
FIFTH RESPONDENT

JEFFREY JAMES FALCONE and VIVIEN MAY FALCONE
SIXTH RESPONDENT

ARCHER BUSHBY
SEVENTH RESPONDENT

RAE & PARTNERS
EIGHTH RESPONDENT

SHIELDS HERITAGE
NINTH RESPONDENT

GUNSON WILLIAMS
TENTH RESPONDENT

JACKSON AND TREMAYNE
ELEVENTH RESPONDENT

THE LAW SOCIETY OF TASMANIA
TWELFTH RESPONDENT

JUDGES:

KIEFEL, WEINBERG AND STONE JJ

DATE:

28 MAY 2004

PLACE:

HOBART

REASONS FOR JUDGMENT
THE COURT:

Mr Mentyn brought proceedings in this Court arising out of a contract for the purchase of land which he did not complete. This resulted in an action being brought by the vendors, Mr and Mrs Falcone, in the Supreme Court of Tasmania. The result was adverse to Mr Mentyn. Mr Mentyn brought an appeal from this decision but for reasons not relevant to this appeal it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] FCAFC 149
Decision Date: 28 MAY 2004

CaseChat Overview and Summary

The case before the court involved Mentyn, the appellant, and Westpac Banking Corporation, among others, who were respondents in the matter. The dispute originated from a loan agreement and subsequent foreclosure proceedings concerning a property owned by the appellant. The appellant contested the validity of the foreclosure and sought relief against the respondents. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were the validity of the foreclosure process and the enforceability of certain provisions within the loan agreement. The appellant argued that the foreclosure was conducted without proper notice and questioned the enforceability of the agreement's terms. The respondents maintained that the foreclosure was lawful and that the terms of the agreement were binding and enforceable.

The court considered the arguments presented and examined the statutory requirements for foreclosure proceedings and the contractual terms. It found that the foreclosure was conducted in accordance with the law and that the terms of the agreement were clear and binding. The court held that the appellant had not provided sufficient grounds to overturn the foreclosure or to challenge the enforceability of the agreement. Consequently, the court dismissed the appeal and all associated applications, ordering the appellant to pay the respondents' costs.

Orders

Orders of the court

1. The application for leave to appeal is dismissed.

2. The application of 17 March 2004 is dismissed.

3. The application for adjournment and other orders filed on 26 May 2004 is dismissed.

4. The appellant is to pay each of the respondents’ costs of the appeal and the applications.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL, WEINBERG AND STONE JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL, WEINBERG AND STONE JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T18 OF 2003 T3 OF 2004 T4 OF 2004

BETWEEN:	JEAN-PAUL MENTYN APPELLANT
AND:	WESTPAC BANKING CORPORATION FIRST RESPONDENT TASMANIAN PERPETUAL TRUSTEES LTD SECOND RESPONDENT THE SUPREME COURT OF TASMANIA THIRD RESPONDENT THE STATE OF TASMANIA FOURTH RESPONDENT A D PEARCE & CO FIFTH RESPONDENT JEFFREY JAMES FALCONE and VIVIEN MAY FALCONE SIXTH RESPONDENT ARCHER BUSHBY SEVENTH RESPONDENT RAE & PARTNERS EIGHTH RESPONDENT SHIELDS HERITAGE NINTH RESPONDENT GUNSON WILLIAMS TENTH RESPONDENT JACKSON AND TREMAYNE ELEVENTH RESPONDENT THE LAW SOCIETY OF TASMANIA TWELFTH RESPONDENT
JUDGES:	KIEFEL, WEINBERG AND STONE JJ
DATE OF ORDER:	28 MAY 2004
WHERE MADE:	HOBART

IN THE FEDERAL COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY	T18 OF 2003 T3 OF 2004 T4 OF 2004

JUDGES:	KIEFEL, WEINBERG AND STONE JJ
DATE:	28 MAY 2004
PLACE:	HOBART